Kerala High Court
Mr.Sajan K.Thomas vs State Of Kerala on 4 August, 2020
Bench: S.Manikumar, Shaji P.Chaly
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE THE CHIEF JUSTICE MR.S.MANIKUMAR
&
THE HONOURABLE MR. JUSTICE SHAJI P.CHALY
TUESDAY, THE 04TH DAY OF AUGUST 2020 / 13TH SRAVANA, 1942
WA.No.996 OF 2020
AGAINST THE ORDER/JUDGMENT IN WP(C) 1518/2020(L) OF HIGH COURT OF
KERALA
APPELLANT/S:
1 MR.SAJAN K.THOMAS,
AGED 61 YEARS
S/O. LATE K.U. THOMAS, RESIDING AT KODUVIRACHIRA
HOUSE, PUTHENANGADY, KOTTAYAM-686001.
2 MR. JOSEPH K. THOMAS,
AGED 70 YEARS
S/O. LATE K.U. THOMAS, RESIDING AT KODUVIRACHIRA
HOUSE, V/185 MALLOOSSERY, MARAYATHURUTHU, KOTTAYAM-
686041.
3 MR. K.T. THOMAS,
AGED 66 YEARS
S/O. LATE K.U. THOMAS, RESIDING AT 12, 1ST MAIN,
DEFENCE COLONY, INDIRANAGAR, BANGALORE-560038.
4 MR. MANI K. THOMAS,
AGED 68 YEARS
S/O. LATE K.U. THOMAS, RESIDING AT NO.1, LAKE VIEW,
DEFENCE COLONY, SHETTIHALLI, BANGALORE-560015,
REPRESENTED BY HIS POWER OF ATTORNEY HOLDER MR.
K.T. THOMAS, S/O. LATE K.U. THOMAS, RESIDING AT 12,
1ST MAIN, DEFENCECOLONY, INDIRANAGAR, BANGALORE-
560038.
BY ADVS.
SRI.P.K.SURESH KUMAR (SR.)
SRI.VIPIN NARAYAN
SRUTHY N. BHAT
SRI.M.REVIKRISHNAN
RESPONDENT/S:
1 STATE OF KERALA,
WA.No.996 OF 2020 2
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031.
2 DEPUTY SUPERINTENDENT OF POLICE,
CRIME BRANCH, CRIME BRANCH OFFICE, KOTTAYAM-686002.
3 PARAGON POLYMER PRODUCTS PRIVATE LIMITED,
P.B. NO.61, PARAGON BUILDINGS, SREENIVASA IYER
ROAD, CHALUKUNNU P.O., KOTTAYAM-686001, REPRESENTED
BY ITS DIRECTOR.
4 MR. REJI K. JOSEPH,
KODUVIRACHIRA, AISWARYA ROAD, MUTTAMBALAM P.O.,
KOTTAYAM-686004.
5 MR. REJI ABRAHAM,
MURATTUPOOVTHUMKAL, MUTTAMBALAM, KOTTAYAM-686004.
6 MR. JOSEPH ZACHARIAH,
NO.108, SHANTHI LAYOUT, OPP. LAKE VIEW, DEFENCE
COLONY, JALAHALLI WEST, BANGALORE-560015.
7 MR. VIJOO ZACHARIAH,
NO.43, 4TH CROSS ROAD, 1ST BLOCK, DOLLAR COLONY,
RMV 2ND STAGE, BANGALORE-560094.
8 MRS. REBECCA MATHEW,
MURATTUPOOVATHINKAL, PATTUKALATHIL, MUTTAMBALAM
P.O., KOTTAYAM-686004.
R1 BY SRI.SUMAN CHAKRAVARTHY, SENIOR GOVT.PLEADER
OTHER PRESENT:
SRI P.K SURESH KUMAR ( SR), SRI VIPIN NARAYANAN,
SRI JOSEPH KODIANTHARA (SR), SRI SURIN GEORGE IPE
(SR GP)
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 04.08.2020,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WA.No.996 OF 2020 3
JUDGMENT
Dated this the 4th day of August 2020 This Writ Appeal is filed by the petitioners challenging the interim order passed by the Learned Single Judge dated 09.03.2020, whereby the learned Single Judge has refused to grant the following interim measures sought for by the appellants.
"For the reasons stated in the Writ Petition (Civil) and the accompanying affidavit filed herewith it is most humbly prayed that this Hon'ble Court may be pleased to issue an interim order directing to stay the operation of the Impugned Order dated 28.02.2019 of the National Company Law Tribunal, Chennai Bench, Chennai, by which the investigating authorities was directed not to proceed in FIR in Crime No.0139/2019 of Kottayam West Police Station, which has been registered as CR.40/CR/KTM/R/19 of Crime Brach, Kottayam and stay the operation of the order dated 10.12.2019 passed by the National Company Law Tribunal, Kochi Bench, Kochi, in so far as it relates to criminal proceedings arising out of FIR in Crime No.0139/2019 of Kottayam West WA.No.996 OF 2020 4 Police Station, which has been re- registered as CR.40/CR/KTM/R/19 of Crime Branch, Kottayam, in the interest of justice and equity."
2. The main prayers sought for by the appellants in the writ petition are as follows:
"a. Issue a writ of certiorari or any other writ, order or direction in the nature of a writ thereby quashing the Order dated 28.02.2019 by which the NCLT, Chennai Bench, Chennai directed the investigating authorities not to proceed in Crime No.0139/2019 of Kottayam West Police Station which his re-registered as CR.40/CR/KTM/R/19 of Crime Branch, Kottayam.
b. Issue a writ of certiorari or any other writ, order or direction in the nature of a writ thereby quashing the Order dated 10.12.2019 passed by the National Company Law Tribunal, Kochi Bench, Kochi, in so far as it relates to criminal proceedings arising out of FIR in Crime No.0139/2019 of Kottayam West Police Station which has been re- registered as CR.40/CR/KTM/R/19 of Crime Branch, Kottayam."
3. Learned Single Judge on hearing respective WA.No.996 OF 2020 5 counsel appearing for the parties, has declined the interim relief, after an elaborate discussion of the facts and circumstances involved in the case and the developments that have taken place consequent to certain orders passed by the National Company Law Tribunal. The paramount contention advanced by the counsel for the appellants in this appeal is that, the learned Single Judge failed to appreciate that the interim orders passed by the National Company Law Tribunal are without jurisdiction, and without considering the said issue, the learned Single Judge has ventured into conducting a roving enquiry and went on to stay the investigation itself. It is also submitted that, the view of the learned Single Judge that, if the police investigation is permitted to continue, it might hamper the forensic audit, is against the settled principles of law with regard to investigation under the Code of Criminal Procedure and it is also trite that the investigation of a crime is to be determined by the provisions of the Code of Criminal WA.No.996 OF 2020 6 Procedure unless there is specific provision in another statute which indicate a different procedure or investigation to be conducted. Therefore, according to learned Senior Counsel appearing for the appellants, the said view of the learned Single Judge creates serious obstruction to the police investigation and there is no provision in the Company's Act, 2013, interdicting police investigation into cognizable offences under the Indian Penal Code with regard to the affairs of a company. Other grounds are also raised to content and canvas that the learned Single Judge was not right in not granting the interim relief sought for.
4. We have heard learned Senior Counsel for the appellants Sri.P.K.Suresh Kumar assisted by Adv. Sri.M.Revikrishnan, learned Senior Counsel Sri. Joseph Kodianthra, Adv. Sri. Santhosh Mathew, appearing for the party respondents, learned Senior Government Pleader appeared for the State and the Crime Branch, Kottayam, and perused the pleadings and the documents on record. WA.No.996 OF 2020 7
5. Learned Senior Counsel for the appellants advanced contentions basically in accordance with the grounds discussed above. The subject matter of challenge in the writ petition are orders passed by the National Company Law Tribunal. In one of the orders passed, the National Company Law Tribunal has interdicted the investigation in the case registered by the Crime Branch, against one of the directors and employees of the 3rd respondent company allegedly having serious financial implications. According to learned Senior Counsel, there is no power vested with the National Company Law Tribunal to interfere with an investigation process undertaken by the state police following the procedure contemplated under law, especially due to the fact that there is no enabling power under the Company's Act, 2013, empowering the Tribunal to pass any such orders.
6. On the other hand, learned Senior Counsel appearing for the respondents submitted that, the very same subject issues that are raised in the writ petition is under challenge in Company Appeal WA.No.996 OF 2020 8 No.43/2020, pending before the National Company Law Tribunal, New Delhi, and has produced an order passed by the Tribunal on 13.03.2020, directing the parties to complete the procedural aspects in order to hear the appeal. The appeal memorandum filed by the appellants herein are also produced before us, from where it is evident that, the relief sought for before the Appellate Tribunal includes the relief to set aside the order dated 10.12.2019 passed by the National Company Law Tribunal, Kochi Branch.
7. However in regard to that, learned Senior Counsel for the appellants submitted that, in fact the appellants have stated the subject matter of challenge made before the Appellate Tribunal against the orders dated 28.02.2019 and 10.12.2019 to limited extent in the writ petition itself and therefore, the pendency of the appeal will not disable or stand in the way of this court considering the grievances of the appellants. It is true, at paragraph 2.29 of the writ petition, it is stated that "for the sake of completeness, WA.No.996 OF 2020 9 it is submitted that this writ petition is being filed seeking a challenge to the impugned order dated 28.02.2019 and 10.12.2019 only to the extent relating to grant of permission of Police or Crime Branch to carry out investigation pursuant to registration of FIR in Crime No.0139/2019 which has been re-registered as CR.40/CR/KTM/R/19 and impugned order by which the Tribunal rejected the Prayer and affirmed that the Order dated 28.02.2019 of NCLT, Chennai. The petitioners reserve liberty to challenge the order dated 10.12.2019 relating to other reliefs before the appropriate Forum. During the course of hearing on the said IA (Exhibit P10), the NCLT directed the parties to approach the Chartered Accountant appointed by Justice Chitra Venkataraman to seek modification of the scope and timelines. The parties met Justice Chitra Venkataraman, however the meeting was not fruitful. True copy of the Minutes of the Meeting is produced herewith and marked as Exhibit P13."
8. Therefore, according to the learned senior WA.No.996 OF 2020 10 counsel, mere pendency of the appeal before the Appellate Tribunal in regard to other matters is not a subject matter of consideration and adjudication in theWrit Appeal and there is no inhibition for considering the appeal on its merit.
9. We have evaluated rival submissions made across the Bar.
10. It is true, learned Single Judge has elaborately considered the contentions advanced by the respective parties and has arrived at the conclusion that the appellants are not entitled to get the interim relief of vacating the order passed by the National Company Law Tribunal , interfering with the investigation process by the Crime Branch in the FIR referred to above. But however, we are of the opinion that the learned Single Judge has not arrived at any finding with respect to the power of the National Company Law Tribunal to evaluate and adjudicate the issue with respect to a crime pending, in regard to the activities of the company concerned on the basis WA.No.996 OF 2020 11 of the complaint filed. What we could gather is that In the process of arriving at the conclusions, reasons are assigned by the learned Single Judge by making reference to the facts and circumstances and the developments that have taken place in the subject issue including the reasons that led to the registration of the Crime, etc. That by itself cannot be termed as conclusive finding made by the learned Single Judge in an interim order. Moreover, it is evident from the appeal memorandum in the appeal filed before the National Company Law Appellate Tribunal that the subject issue raised by the appellants in this writ appeal irrespective of any limitations are pending before the Appellate Tribunal also . Above all these things, the interim relief sought for in the Writ Petition by the appellants is akin to the main relief sought for in the writ petition itself, evident from the reliefs extracted above. It is a well settled legal position that a final relief sought cannot be granted as an interim .
WA.No.996 OF 2020 12
11. Taking into account all these aspects, we do not think that the appellants have made out any case for interference with the interim order passed by the learned Single Judge which is impugned in this appeal, exercising the power under Section 5 of the Kerala High Court Act. Learned Senior Counsel for the appellants also submitted that, since prima facie findings are entered by the learned Single Judge in the interim order, unless it is vacated it will cause serious prejudice to the appellants when the writ petition is finally heard. To that, we are of the opinion that, as stated above, those are all aspects discussed by the learned Single Judge in order to arrive at a just and logical conclusion with respect to the interim relief sought for by the appellants, and according to us, that may not have any bearing at all when the matter is finally adjudicated taking into account the facts and circumstances involved while considering and adjudicating the issues raised in the writ petition on its merits.
WA.No.996 OF 2020 13
12. In that view of the matter, we are not inclined to interfere with the interim order impugned in this appeal and accordingly, the appeal is dismissed, however, the appellants are at liberty to request the learned Single Judge for an early hearing of the writ petition, and we have also no reason to think that the learned Single Judge will not take into account the entire facts and circumstances for disposal of the writ petition irrespective of any findings contained in the interim order.
The Writ Appeal is dismissed accordingly, with the above observations.
Sd/-
S.MANIKUMAR CHIEF JUSTICE Sd/-
SHAJI P.CHALY JUDGE uu/05.08.2020